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Whither the War Powers Resolution?

President Barack Obama speaks on the military intervention in Libya at the National Defense University, March 28, 2011. Photo courtesy of the National Defense University.

In observance of Memorial Day, we express our profound gratitude to all of the men and women who have bravely served our country. In this post, Riding the Tiger contributor Stephen Knott puzzles over the institutional contestation of the power to send our soldiers to war.

Students taking introductory courses in American government are taught that there is an abiding tension built into the Constitution, “an invitation to struggle” between Congress and the President over the right to direct the nation’s foreign policy. We learn that the founders were determined to “chain the dog of war” by giving Congress the power to declare war, believing that this power was simply too dangerous to entrust to the President alone.

And yet this is not the case, for the “struggle” is long over, with the presidency emerging triumphant. The United States has fought five declared wars in its history but engaged in well over 125 instances of hostilities, primarily at the instigation of the Commander in Chief. The one serious attempt to reverse this trend, the War Powers Resolution of 1973, has been an abject failure, a development abetted by Barack Obama and apparently welcomed by Mitt Romney.

Contemporary American Presidents are fond of noting they are simply following in the footsteps of their illustrious predecessors when they offer an expansive interpretation of their war powers. The historical record supports this interpretation, for the practice of ignoring the Congress is almost as old as the Constitution itself. George Washington arguably weakened the intent of the Framers by unilaterally issuing his Neutrality Proclamation of 1793. Abraham Lincoln suspended habeas corpus during the Civil War even though the Constitution clearly grants that power to the Congress. Franklin Roosevelt covertly positioned the United States for entry into the Second World War without congressional acquiescence. President Truman responded to the North Korean invasion of South Korea without seeking congressional approval, while President Kennedy unilaterally blockaded Cuba (the euphemism of choice was “quarantine”), a recognized act of war, during the missile crisis of 1962. President Reagan invaded Grenada in 1983, informing Congress of his intent to do so two hours after he issued his order to invade. All of these examples (and many more) point to the idea that, at least for American Presidents, necessity trumps fidelity to the Constitution.

Our so-called “great Presidents,” the ones who are carved into Mount Rushmore and who we celebrate on Presidents Day, interpreted their “executive power” and their Commander in Chief authority in a fungible manner, to put it charitably. Granted, the actions of these Presidents contributed to the emergence of the United States as the world’s lone superpower. Nonetheless, for war power purists such as Rand Paul, Ron Paul and Dennis Kucinich, these actions, despite their occasional positive results, are illegal. Worse, the lukewarm response to these actions demonstrates that the nation has endorsed the idea that law of necessity permits the President to eviscerate the constitutional underpinnings of separation of powers and checks and balances. In other words, the purists contend, the people of the United States through their elected officials sold their constitutional soul in the name of safety or in some cases simply to enhance the nation’s power and prestige.

The prospect of returning to a more balanced and constrained view of executive power over war and national security seems dim – members of Congress who ascend to the White House critical of presidential power frequently reverse course once they settle into the executive mansion. Something seems to happen at a cognitive level when an incoming President travels the mile and a half from the Capitol to 1600 Pennsylvania Avenue – the ability to move swiftly and without congressional encumbrances suddenly becomes appealing even to a President who may have spent his entire pre-presidential career in Congress.

President Barack Obama is a case in point: while campaigning in December, 2007, Obama noted that “the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” In March, 2011, the President authorized just such an attack on targets inside Libya without seeking congressional approval, and with limited (at best) consultation with congressional leaders. Mitt Romney was remarkably silent on the constitutionality of Obama’s Libyan operation, although he had previously indicated that Congress has a limited role regarding such actions. When asked in 2007 whether a President would need congressional approval for an attack on Iran, Romney responded that “you sit down with your attorneys” to determine whether congressional authorization was needed. He added, “obviously, the President of the United States has to do what’s in the best interest of the United States to protect us against a potential threat.”

Neither candidate has bowed to the obvious and adopted the principled stance that it is time to end the strange practice of keeping an act on the books that no one obeys. The year 2013 marks the 40th anniversary of the enactment of the War Powers Resolution, one the nation will commemorate by inaugurating a President who, in keeping with his predecessors, will ignore it.